Trial by Fury?: The Fallacy of Bush's Military Tribunals. (International Law)

Robertson, Geoffrey, Harvard International Review

The immediate and rightful response of the United States to the atrocity of September 11 was to demand "justice," although that word sounded in many powerful mouths like a lynch mob's cry for summary execution, assassination squads, and Osama bin Laden head on a plate. Bin Laden was soon declared the "prime suspect" in the attacks and a US$25 million reward was announced fir his capture. The confusion over the meaning of the word "justice" became acute when the Pentagon chose Operation Infinite Justice as the code name for the bombing of Afghanistan. From a philosophical perspective, the name makes little sense, as human justice is both finite and fallible. More importantly, it begs the question that Western leaders so notably failed to address: how they would persuade the rest of the world that their cause was just. Slobodan Milosevic, now awaiting trial in the Hague, was an early target of NATO's war over Kosovo. The Lockerbie tribunal had resulted from the long economic war against Libya for blowing up a U S aircraft, and a life sentence was imposed on one of the perpetrators. But what court, if any, awaited bin Laden and his lieutenants, or indeed Mullah Omar and his ministers?

The last thing Western leaders wanted was for bin Laden to come out with his hands up. Bill Clinton claimed to have secretly authorized a Central Intelligence Agency assassination after the 1998 embassy bombings in Kenya and Tanzania. President George W. Bush and his advisers made it clear that they prefer him dead rather than alive. Ironically, this is the consummation bin Laden himself seeks: in his belief system, the entrance into paradise requires him to die mid-jihad and not of old age in a prison in upstate New York. Presidential policy-makers producing the plans for a military commission to convict and speedily execute the Al Qaeda leader if he were to be taken alive seem unaware that this would ensure bin Laden's earthly martyrdom and (if only in his own mind) his entrance to paradise.

But suppose he were captured, interrogated, and, like Milosevic, held in a criminal court dock, to be finally locked up after a reasoned judgement for the rest of his life in a cell in Finland? Surely this would greatly demystify the man, debunking his cause and de-brainwashing his many thousands of followers. A fair trial before an independent court may serve this practical purpose, and, more importantly, that is what international law requires.

There can be no justification for the cold-blooded execution of a surrendered terrorist. Summary execution of terrorists is tempting to law-enforcement agencies because it avoids the danger of exposing informers or secret intelligence at a trial and it pre-empts further terrorist reprisals. But the right to life, and the right to due process is fundamental, even in war. From the moment the United States and its allies intervened on the side of the Northern Alliance in its fight against the Taliban, the Geneva Conventions of 1949 applied, requiring humane treatment for all combatants who surrender and no punishment without some form of fair process. The Northern Alliance accepted this much in principle, if not in practice, even with respect to Al Qaeda's hated Arab and Chechen fighters. A local trial for the leadership of Al Qaeda and the Taliban was out of the question, given the chaotic absence of any court or local law system that could sensibly deal with a crime against humanity. Realistic trial options ex isted in the United Stated, but not in courts where justice could be handed down publicly.

Trial by fury

In the United States, bin Laden is already under indictment for the 1998 embassy bombings, having been charged with conspiracy to murder US nationals (four co-defendants were convicted in May 2001). There would be no jurisdictional problem with adding counts relating to September 11 to the existing indictment, or with charging the Taliban leaders with aiding and abetting the attacks. …

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